On June 15, 2016, in an effort to implement certain provisions of President Obama’s Executive Order 11246, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) updated the sex discrimination guidelines applicable to all federal contractors, including health care providers enrolled in Medicare and Medicaid.  Effective August 15, 2016, the new rule will apply to employers with a single federal contract in excess of $10,000, or with multiple federal contracts totaling $10,000 or more over a 12-month period.

Per the new rule, the definition of “sex” for purposes of discrimination now includes pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping. With regard to gender identity, the final rule explicitly states that federal contracts must provide “access to the restrooms, changing rooms, showers or similar facilities designated for sue by the gender with which [the employees] identify.” However, OFCCP intentionally left out sexual orientation, noting that Title VII case law has not yet resolved the issue as to whether the statute’s use of the word “sex” encompasses sexual orientation. (Still, federal contractors are prohibited by Executive Order 13672 from making employment decisions on the basis of sexual orientation).

Moreover, the final rule states that federal contractors may not maintain insurance coverage for employees that includes “categorical exclusions” for health services associated with gender identity. Executive Order 11246 requires that contractors provide healthcare services to their employees “on the same terms for all individuals for whom the services are medically appropriate, regardless of sex assigned at birth, gender identity or record gender.”

With regard to accommodations for pregnant employees, OFCCP adopted the test set forth in the Supreme Court’s March 2015 ruling in Young v. UPS. In Young, the Court held that employers must provide pregnancy leave “on the same terms that medical or sick leave is provided for medical conditions that are similar in their effect on employees’ ability to work.” Likewise, the rule clarifies that family leave or caregiving leave must be made available on the same terms for both women and men. For example, the rule states that gender-based discrimination now includes the “[a]dverse treatment of a male employee who is not available to work overtime or on weekends because he cares for his elderly father, based on the sex-based stereotype that men do not have family caregiving responsibilities that affect their availability for work, or that men who are not available for work without constraint are not sufficiently committed, ambitious, or dependable.”

In addition to reviewing their employment policies and health insurance coverage exclusions, employers (especially those with federal contracts) should consider implementing OFCCP’s “Best Practices,” found in the appendix to the final rule. Those best practices are listed as follows:

(1) Avoiding the use of gender-specific job titles such as “foreman” or “lineman” where gender-neutral alternatives are available;

(2) Designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral;

(3) Providing, as part of their broader accommodations policies, light-duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions;

(4) Providing appropriate time off and flexible workplace policies for men and women;

(5) Encouraging men and women equally to engage in caregiving-related activities;

(6) Fostering a climate in which women are not assumed to be more likely to provide family care than men; and

(7) Fostering an environment in which all employees feel safe, welcome, and treated fairly, by developing and implementing procedures to ensure that employees are not harassed because of sex. Examples of such procedures include:

  • Communicating to all personnel that harassing conduct will not be tolerated;
  • Providing anti-harassment training to all personnel; and
  • Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.

The attorneys at Chilivis Grubman represent companies of all types and sizes in connection with employment-related litigation, including matters brought under Title VII as well as the FLSA. For any questions, or if we can assist you in connection with such a matter, please contact us at (404) 262-6505 or sgrubman@cglawfirm.com.